Federal Rule of Civil Procedure 59(a) allows trial courts to grant new trials to any or all of the parties, on any or all of the issues, including damages. However, the federal circuits are split on how to handle new trials based solely on damages. One croup of circuits grants partial new trials on damages alone only if the erroneous damage amount did not in any way affect the determination of any other issue. Under this standard, a new trial on damages is allowed when the second jury can evaluate the first damage award without also re-examining other issues, such as liability. Another group of courts, however, permits a new trial on damages even where the issue of damages is interwoven with other issues, and allows both parties to present evidence and testimony from the first trial if the re-presented evidence or testimony is related to damages in some way. This article argues that courts should follow the latter approach because it prevents injustice to one or both parties by making it easier to obtain a new trial based solely on damages, and it allows both parties to present evidence necessary to their arguments.
Katherine Kubale and Richard Bales
The Damage Is Done: Ordering a New Trial Based Only on Damages,
40 Pepp. L. Rev.
Available at: http://digitalcommons.pepperdine.edu/plr/vol40/iss3/3